Green v. City of Mission

United States District Court, S.D. Texas, McAllen Division

May 14, 2018

DAVID M GREEN, Plaintiff,v.CITY OF MISSION, et al, Defendants.

OPINION

Micaela Alvarez United States District Judge

The
Court now considers the motion to dismiss[1] brought by the
City of Mission (“City”), Jorge Cabrera
(“Cabrera”), Javier Lara (“Lara”),
and Sean De La Rosa (“De La Rosa”) (collectively
“Defendants”) as well as David M. Green's
(“Plaintiff”) response.[2] After duly considering the
record and relevant authorities, the Court GRANTS IN
PART AND DENIES IN PART Defendants' dismissal
motion as follows.

I.
Background

The
Court finds it helpful to quote directly from the
“Facts” section in Plaintiff's first amended
complaint because they paint a clear picture of what
happened, and are uniquely appropriate to reference in this
opinion given the fact that the Court is effectively tasked
with determining the legal sufficiency of these allegations:

In the early afternoon of Monday, February 22, 2016, Mr.
Green was at his home in Wagon City South, a small mobile
home community in Mission, Texas. His son, David [hereinafter
referred to as “David” or
“Decedent”], lived with him at the time. David
had a long history of mental illness, suffering from
schizophrenia and bipolar disorder for most of his adolescent
and adult life. David's mental illness had in the past
been treated with prescription medication. But on this day,
and for some period of time before, David had not taken his
meds. Mr. Green noticed David's behavior become
increasingly unstable, culminating in David's wielding an
ax and acting out aggressively.

At approximately 1:40 p.m., Mr. Green called 911, seeking
help for his mentally ill son. A MPD dispatcher received the
call. Mr. Green calmly explained to the dispatcher that his
son had a mental disability because he was mentally ill and
diagnosed with schizophrenia, but was off his medication and
making physical threats. Mr. Green also told the dispatcher
that David was a mental health patient who had spent
significant time in a hospital and was at that point in the
midst of a mental health crisis.

While Mr. Green remained on the phone, the dispatcher relayed
the call to police officers in the area. The dispatcher did
not, however, report David's mental illness or past
treatment nor call for any medical personnel or mental health
crisis specialists to report to Wagon City South. Mr. Green
advised the dispatcher that David was outside the home, had
put down the ax, and had picked up a machete. Officer
Cabrera, a traffic investigator, was the first to arrive on
the scene.

Upon arrival at Mr. Green's residence, Officer Cabrera
immediately encountered David outside of Mr. Green's
home. David was still holding a machete and obviously
suffering a mental health crisis. Rather than try to
deescalate the crisis, Officer Cabrera immediately drew his
weapon without provocation and yelled commands while pointing
his handgun at David. Officer Cabrera ordered David to drop
the machete. David did so within seconds.

In apparent desperation and fear, David retreated to the
safety of Mr. Green's nearby pick-up truck. Again failing
to use de-escalation tactics, Officer Cabrera continued his
aggressive attempt to apprehend David even though Officer
Cabrera had not seen David commit any crime, and even though
David had dropped the machete and had no weapon. Officer
Cabrera continued to point his handgun at David and
aggressively yell commands.

In a panic, David started the pick-up truck and began driving
forward. In response, Officer Cabrera positioned himself in
front of the vehicle. David exited the driveway and tried to
avoid hitting Officer Cabrera by driving around him on his
right side. Officer Cabrera stepped back as the vehicle
passed by and fell sideways as David turned left around him.
Officer Cabrera returned to his feet and, under no threat of
harm to himself or anyone else, fired three shots at David as
he drove away.

Mr. Green witnessed these events, all while on the phone with
the MPD dispatcher. As David started the vehicle, Mr. Green
pleaded with Officer Cabrera to shoot the tires and not
David. After Officer Cabrera fell and after he fired shots at
David, Mr. Green hung up the phone and went outside.

Officer Cabrera returned to his patrol vehicle and went on a
high-speed search for David within the small mobile home
community. Additional police vehicles arrived at Wagon City
South while Officer Cabrera's search continued. Officer
Lara was one of the responding officers. Officer De La Rosa
was another.

David continued to drive the pick-up truck around the mobile
home park with no apparent intent to do anything other than
avoid police officers trying to shoot him. While in his
patrol vehicle, Officer Lara spotted the pick-up truck
driving towards him. Officer Lara positioned his patrol
vehicle in front of the truck to stop it. But David swerved
left to avoid Officer Lara's patrol vehicle, further
demonstrating that he was not trying to injure anyone but
simply get away from Officers that appeared to him to
threaten his life.

Officer Lara exited his vehicle and continued his pursuit on
foot carrying his assault rifle and handgun. David continued
his frantic and fearful attempt to avoid being shot by
police, driving in circles around the mobile home park. The
police set up a blockade of patrol vehicles at one of the
intersections inside the park. It was at this blockade that
Officer Lara positioned himself and readied his assault
rifle. David turned a corner and approached the blockade.

Upon seeing the blockade and Officer Lara ahead of him, David
again attempted to avoid contact with the police by veering
left onto the yard of an adjacent property. As David veered
left, Officer Lara fired his assault rifle at David while
under no threat of harm. David avoided contact with other
vehicles or homes, but ultimately struck a large tree as he
attempted to drive around the blockade and Officer Lara. An
elderly woman standing outside of her home and near the tree
that David struck showed no signs of fear or distress.

The impact with the tree caused major damage to the pick-up
truck and left it inoperable. Both the driver-side and
passenger-side airbags deployed from the collision, and there
was no visibility through the windshield because it was
covered by the bent, crushed hood of the vehicle and tree
branches. The front of the vehicle had caved in. The grill
was smashed and the front bumper had pierced the engine
compartment. The horn of the pick-up truck blared loudly and
would not shut off, as if it was stuck in the on position.

The pick-up truck could not move forward and presented no
threat to any officer or other person. Immediately after
David struck the tree, Officer Lara approached the passenger
side of the pick-up truck with his assault rifle pointed at
David. Within seconds, without any provocation and without
any threat of imminent harm, Officer Lara squeezed the
trigger of his assault rifle, intending to kill David. The
rifle failed to fire. The horn continued to blare as the
truck remained disabled and in no position to threaten harm
to any person. The elderly woman stood nearby and watched in
astonishment as Officer Lara, undeterred by a jammed assault
rifle (and any celestial message that could be interpreted
from it), pulled out his handgun and fired four rounds into
the pick-up truck. The final round struck David in the neck,
causing him to seize up as he bled profusely, surrounded by
officers with weapons drawn.

As David sat dying in the vehicle, and no doubt in a state of
shock and confusion, the pick-up truck slowly rolled
backwards until it ran into a mobile home. Inexplicably,
Officer Lara and Officer De La Rosa approached the vehicle
firing their own additional rounds at David, hitting him in
the arm and chest.

When it was clear that David was dead, the Officers dragged
David's lifeless body from the red pick-up truck and laid
him on the grass face down. The Officers eventually covered
David's body with a yellow tarp.[3]

Plaintiff
filed his original complaint against Defendants in February
2018, [4] and thereafter filed an amended complaint
as a matter of course.[5] The amended complaint alleges Fourth,
Eighth, and Fourteenth Amendment claims of excessive force,
cruel and unusual punishment, due process, and equal
protection against Cabrera, Lara, and De La Rosa in their
individual capacities.[6] Moreover, Plaintiff alleges that the City
is liable via 42 U.S.C. §1983 for these same
constitutional violations which are alleged to have arisen
because the City had policies that encouraged excessive force
and because it failed to properly train and supervise its
employees.[7]

Furthermore,
Plaintiff alleges that the City violated Title II of the
Americans with Disabilities Act (“ADA”) as well
as § 504 of the Rehabilitation Act
(“RA”).[8] Plaintiff alleges negligence against the
City based upon Cabrera, Lara, and De La Rosa's actions,
and that the City's sovereign immunity has been waived by
the Texas Tort Claims Act (“TTCA”).[9] Lastly, Plaintiff
alleges that he “suffered extreme emotional
distress” because he “heard at least nine
gunshots and knew instantly that the Officers had killed his
son, ” and that this was the result of the
Officers' and ultimately the City's
negligence.[10] Thus, it appears that Plaintiff is
alleging a bystander theory of negligent infliction of
emotional distress. Plaintiff's substantive claims are
accompanied by coordinate requests for declaratory and
injunctive relief.[11]

Defendants
filed the instant motion to dismiss, [12] and Plaintiff
timely responded, [13]rendering the motion ripe for review. The
Court now turns to its analysis.

II.
Legal Standard

To
survive a Federal Rule of Civil Procedure 12(b)(6) motion, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.”[14] This does not
require detailed factual allegations, but it does require
“more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.”[15] Courts first disregard from their
analysis any conclusory allegations as not entitled to the
assumption of truth, [16] but regard well-pled facts as true,
viewing them in the light most favorable to the
plaintiff.[17] Courts then undertake the
“context-specific” task of determining whether
the remaining well-pled allegations give rise to an
entitlement to relief that is plausible, rather than merely
possible or conceivable.[18]

III.
Analysis

A.
Section 1983 Claims

i.
Eighth Amendment

Defendants
argue that Plaintiff's Eighth Amendment claim is
improperly pled because the prohibition on cruel and unusual
punishment only applies to convicted prisoners, not other
persons such as arrestees or pretrial
detainees.[19] The Fifth Circuit has held that the
Eighth Amendment prohibition on cruel and unusual punishment
only protects convicted prisoners.[20]Here, Plaintiff has not
pled that Decedent was a convicted prisoner. Thus,
Plaintiff's Eighth Amendment claim is DISMISSED
WITH PREJUDICE.

ii.
Fourteenth Amendment-Equal Protection

Defendants
also contend that Plaintiff's Equal Protection claim is
improperly pled in light of the nature of Equal Protection
claims.[21] Defendants cite Fifth Circuit precedent
for the proposition that the Equal Protection Clause's
“protection reaches only dissimilar treatment among
similar people . . . .”[22] Indeed, in the context of
§ 1983 claims against law enforcement officers, the
heart of an Equal Protection claim is discriminatory
intent and treatment.[23] Here, Plaintiff does not allege any
actions towards Decedent that constituted “dissimilar
treatment among similar people.” Notably, it is not
clear from Plaintiff's complaint whether any of the
individual defendants were aware Decedent had been diagnosed
with any psychological disorders when the events giving rise
to this case took place. Thus, the Court cannot reasonably
infer that discriminatory intent motivated the individual
defendants' actions. Plaintiff does not address dismissal
of his Equal Protection claim in his response. Moreover, as
will be discussed below, generally, excessive force claims in
the detention context cannot properly be brought under any
Constitutional provision except the Fourth Amendment.
Therefore, the Court finds that Plaintiff's Equal
Protection claim is improperly pled and is DISMISSED
WITH PREJUDICE.

iii.
Fourteenth Amendment-Due Process

Defendants
cite Supreme Court precedent for the proposition that
excessive-force claims, by their very nature, must be brought
under the Fourth Amendment, and cannot be brought in the form
of a Fourteenth Amendment Due Process claim.[24] Indeed, the
Supreme Court in Graham confirms this
proposition.[25] The Graham Court held that
excessive force claims in the context “of an arrest or
investigatory stop” cannot be brought under the
Fourteenth Amendment Due Process Clause, and must instead be
brought under the Fourth Amendment, which provides an
“explicit textual source of constitutional protection
against this sort of physically intrusive governmental
conduct . . . .”[26]

The
Graham Court specifically grounded its ruling in
Garner, in which officers used deadly force.
Although the plaintiff in Garner brought an
excessive force claim under both the Fourth and Fourteenth
Amendments, [27] the Court refused to analyze it under
the Fourteenth Amendment. Thus, the Graham Court
made “explicit what was implicit in
Garner's analysis, ” holding that
“all claims that law enforcement officers have
used excessive force-deadly or not-in the course of an
arrest, investigatory stop, or other ‘seizure' of a
free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness' standard, rather than
under a ‘substantive due process'
approach.”[28] In his response, Plaintiff does not
contest dismissal of his Fourteenth Amendment Due Process
claim against the individual defendants. For all these
reasons, Plaintiff's Fourteenth Amendment Due Process
claim-grounded in allegations of excessive force-is not
legally viable, and must be DISMISSED WITH
PREJUDICE.

iv.
Fourth Amendment excessive force

Defendants
argue that Plaintiff's Fourth Amendment excessive force
claim fails because Plaintiff does not “allege any
facts that would support an excessive force cause of action .
. . .”[29]Defendants further contend that even if
Plaintiff had properly alleged sufficient facts to support an
excessive force claim, the individual defendants in this case
are entitled to qualified immunity because “Plaintiff
has not alleged facts sufficient to demonstrate that no
reasonable officer in the same situation and set of
circumstances . . . could have believed their actions were
proper.”[30]Plaintiff directly addresses these
arguments at length in his response.[31]

Because
Defendants challenge Plaintiff's Fourth Amendment
excessive force claim both on the merits and on the basis of
qualified immunity, the Court proceeds in that order. First,
the Court will evaluate whether Fourth Amendment excessive
force claims have been sufficiently pled on the merits with
regard to each individual defendant. The Court then turns to
qualified immunity with regard to those excessive force
claims that pass muster on the pleadings.

Excessive
Force A Fourth Amendment excessive force claim has the
following elements: “(1) an injury that (2) resulted
directly and only from the use of force that was excessive to
the need, and (3) the use of force was objectively
unreasonable.”[32] The second and third elements are
extremely fact-specific inquiries. Whether the use of
particular force was reasonable or excessive depends upon the
totality of the circumstances, including: the severity of the
crime, amount of force used contrasted with the amount of
force needed, whether the suspect posed a safety risk to
police or the public, and whether the suspect was actively
resisting arrest or evading arrest by flight.[33]

The
Court begins with Plaintiff's excessive force claim
against Officer Cabrera. Plaintiff has failed to allege a
cognizable claim against Cabrera. Plaintiff's pleadings
do not indicate that Cabrera fired any shots that injured
Decedent or otherwise participated in any force that caused
Decedent's injuries. Under § 1983 each government
official is “only liable for his or her own
misconduct.”[34] It is unclear from the complaint if
Cabrera was even at the immediate location when Decedent was
injured. Thus, Plaintiff fails to allege facts sufficient to
find Cabrera personally participated in the events that
caused Decedent's injuries. Accordingly, Plaintiff's
excessive force claim against Cabrera is DISMISSED
WITH PREJUDICE.

The
Court now considers Plaintiff's excessive force claim
against Lara and De La Rosa. Plaintiff alleges that Lara
fired into Decedent's truck four times with his handgun
after the truck had struck a tree thus immobilizing
Decedent.[35] The fourth bullet struck Decedent in the
neck, causing him to seize and bleed profusely.[36] Decedent was
not armed.[37] Lara and De La Rosa fired additional
rounds at Decedent, “hitting him in the arm and
chest.”[38]

Given
the facts alleged, Plaintiff has pled a valid excessive force
claim against Lara and De La Rosa under the Fourth Amendment.
Indeed, Defendants do not contend otherwise in their
briefing. Decedent suffered an injury because Lara shot him
in the neck. Decedent also suffered an injury because Lara
and De La Rosa subsequently shot Decedent again in the arm
and chest, although it is not clear exactly who shot Decedent
in the arm and who shot Decedent in the chest.

Given
all the surrounding circumstances, the facts alleged are
sufficient to support a claim that this force was excessive
to the need. Similarly, the facts sufficiently allege that
the use of such force was objectively unreasonable, given the
surrounding circumstances. Moreover, Lara and De La Rosa were
clearly acting under color of state law as police officers,
and thus may be liable for Constitutional violations under 42
U.S.C. § 1983.[39] Consequently, the essential elements of
a Fourth Amendment excessive force claim have been pled.

Since
Plaintiff has sufficiently pled the elements of an excessive
force claim against Lara and De La Rosa, the Court now turns
to whether these officers are entitled to qualified immunity,
thus escaping liability. As an initial matter, the plaintiff
bears the burden to establish qualified immunity after it has
been raised in a defendant's dismissal motion, even when
that defendant has not answered yet and thus has not
solidified qualified immunity as one of his affirmative
defenses.[40] To meet this burden, the plaintiff must
show: “(1) that the official violated a statutory or
constitutional right, and (2) that the right was
‘clearly established' at the time of the challenged
conduct.”[41] Here, the Court has already determined
that Plaintiff's allegations are sufficient to find that
Lara and De La Rosa violated the Fourth Amendment, so the
only remaining question is the second prong of the analysis:
whether the alleged violations of Decedent's rights were
clearly established at the time they occurred.[42]

A right
is clearly established if a reasonable official would
understand that what he is doing violates that
right.[43] An official's actions are held to be
reasonable unless “all reasonable officials” in
the same circumstances would have known that the conduct
violated the plaintiff's asserted rights.[44] The focus of
the analysis is on whether an official had “fair
notice” that the conduct was unreasonable and is judged
against “the backdrop of the law at the time of the
conduct.”[45] To find that an official had fair notice
“there must be a controlling authority-or a robust
consensus of persuasive authority-that defines the contours
of the right in question with a high degree of
particularity.”[46] However, “this does not mean
that ‘a case directly on point' is
required.”[47] Rather, “existing precedent must
have placed the statutory or constitutional question
‘beyond debate.'”[48]

In this
case, Plaintiff has met his burden. Plaintiff correctly
points out that it was clearly established at the time of the
incident that “deadly force violates the Fourth
Amendment unless the officer has probable cause to believe
that the suspect poses a threat of serious physical harm,
either to the officer or to others, ”[49] and this
threat of physical harm must be
“immediate.”[50]While a review of Fifth Circuit cases
does not provide any case that is directly on point, a review
of similar cases provide insight into whether there was a
“robust consensus” that the conduct in question
was objectively unreasonable.

The
Fifth Circuit found that an officer that shot an unarmed,
mentally-ill man who was acting erratically had fair notice
that such behavior was objectively
unreasonable.[51] In Mason v. Lafayette City-Parish
Consolidated Government the Fifth Circuit declined to
provide qualified immunity to a police officer who fired two
additional shots at a suspect after the suspect was already
prone from prior gun shots.[52] Additionally, Fifth Circuit
case law “makes certain that once an arrestee stops
resisting, the degree of force an officer can employ is
reduced.”[53]

Plaintiff
alleges that when Lara fired the first round of shots,
Decedent was unarmed and was no longer trying to escape as he
was stunned and his truck had been immobilized from an
accident.[54] When Lara and De La Rosa fired the next
round of shots Decedent was seizing from a gunshot wound to
the neck.[55] These allegations are sufficient to find
that any reasonable officer in similar circumstances would
have believed that Decedent was no longer resisting and did
not pose a threat of serious physical harm and thus that
applying deadly force in such circumstances would be
objectively unreasonable. Accordingly, Lara and De La
Rosa's alleged conduct violated a clearly established
right and they are not entitled to qualified immunity.

Plaintiff
has sufficiently pled the necessary elements of excessive
force and met his burden to demonstrate that the officers are
not entitled to qualified immunity. Defendants' motion is
DENIED as it relates to the excessive force
claims against Lara and De La Rosa.

Excessive
Force - Bystander Liability

The
Court now turns to the Plaintiff's Fourth Amendment claim
against Cabrera and De La Rosa for failing to take reasonable
steps to stop Lara from engaging in excessive force.
Plaintiff argues that Defendants did not explicitly move to
dismiss this particular legal theory regarding excessive
force.[56] However, Defendants moved to dismiss
Plaintiff's excessive force claims against all three
officers, which included this alternative theory of
liability.[57] Accordingly, the Court will consider
whether Plaintiff's claim against Cabrera and De La Rosa
for failing to intervene to prevent excessive force is
sufficiently pled.

The
Fifth Circuit has articulated an independent basis for
excessive force-“bystander
liability.”[58] Under this theory, excessive force
liability may lie for any officer who “is present at
the scene and does not take reasonable measures to protect a
suspect from another officer's use of excessive
force.”[59] The underlying rationale “is that
a bystanding officer, by choosing not to intervene,
functionally participates in the unconstitutional act of his
fellow officer.”[60] Such liability lies against an
officer when he: “(1) knows that a fellow officer is
violating an individual's constitutional rights; (2) has
a reasonable opportunity to prevent the harm; and (3) chooses
not to act.”[61] Bystander liability requires that the
officer in question be at the scene of the Constitutional
violation when it occurred.[62] Moreover, it is important
whether the officer “acquiesced” in the
constitutional violation.[63]

Here
Plaintiff has not sufficiently pled a cognizable claim of
bystander liability for excessive force. Plaintiff alleges
that Lara approached the truck and “[w]ithin
seconds” fired his assault rifle, which jammed, and
that “undeterred by a jammed assault rifle . . . pulled
out his handgun and then fired four rounds into the pick-up
truck.”[64] Plaintiff provides no facts that would
support finding that Cabrera and De La Rosa had a reasonable
opportunity to intervene and stop this conduct, or that they
acquiesced in Lara's actions. Plaintiff's assertions
to the contrary are purely conclusory.[65] Indeed, it is
unclear from Plaintiff's complaint whether Defendant
Cabrera was even at the location during the shooting.
Accordingly, Plaintiff has failed to allege a cognizable
claim of excessive force based on bystander liability against
Cabrera and De La Rosa, and these claims are
DISMISSED WITH PREJUDICE.

v.
Claims against the City of Mission

Cities
may not be sued under § 1983 for an injury inflicted
solely by its employees or agents, however, cities may be
liable if their policies or customs caused the
underlying constitutional violation.[66] Defendants argue that
Plaintiff fails to sufficiently allege a custom, policy or
practice of the City that contributed to the underlying
constitutional violation as required under §
1983.[67] Defendants also argue that Plaintiff did
not sufficiently identify a policymaker that was aware of a
specific policy regarding training and supervision that would
result in a constitutional violation.[68]

Municipal
liability requires deliberate action attributable to the
municipality that is the direct cause of the alleged
constitutional violation.[69] In order to allege a claim
under § 1983 against a municipality a plaintiff must
identify: (1) a policymaker who can be charged with actual or
constructive knowledge of, (2) an official policy (or
custom), and (3) a constitutional violation whose
‘moving force' is that policy or
custom.[70]

As
noted above, Plaintiff has sufficiently alleged a
constitutional violation for excessive force against Lara and
De La Rosa. However, the City of Mission may only be liable
for this violation if their official policies or customs were
the “moving force” that caused this underlying
constitutional violation and that policy makers had
actual or constructive knowledge of this policy. The Court
will now consider whether Plaintiff has sufficiently alleged
a claim against the City.

An
official policy may be shown either with (1) a policy
statement, ordinance, regulation, or decision that is
officially adopted and promulgated by someone with
policymaking authority, or (2) “[a] persistent,
widespread practice of city officials or employees, which,
although not authorized by officially adopted and promulgated
policy, is so common and well settled as to constitute a
custom that fairly represents municipal
policy.”[71]

Here,
Plaintiff points to no written or officially adopted policy
as the moving force behind the violations, but argues a
customs and practices theory of municipal liability. In this
regard Plaintiff proceeds on two legal theories: (1) that the
City's widespread and persistent policies, customs, and
practices regarding responses to emergency calls relating to
mentally-ill citizens encouraged the use of excessive
force;[72] and (2) that the City's failure to
adequately supervise and train its officers amounted to
deliberate indifference and thus the City is liable for the
excessive force that stemmed from that
training.[73] The Court will consider each argument in
turn.

Custom
or Policy Encouraging Excessive Force

“A
customary policy consists of actions that have occurred for
so long and with such frequency that the course of conduct
demonstrates the governing body's knowledge and
acceptance of the disputed conduct.”[74] To properly
state a claim “[t]he description of a policy or custom
and its relationship to the underlying constitutional
violation . . . cannot be conclusory; it must contain
specific facts.”[75]

Persistent
practices that would constitute an official policy are not
indicated by “isolated violations” but rather
through “persistent, often repeated, constant
violations.”[76] In other words, a plaintiff must
demonstrate “a pattern of abuses that transcends the
error made in a single case.”[77]“A pattern requires
similarity and specificity; ‘[p]rior indications cannot
simply be for any and all bad or unwise acts, but rather must
point to the specific violation in
question.'”[78] In addition to similarity and
specificity, a pattern must be comprised of
“sufficiently numerous prior incidents” rather
than merely “isolated instances.”[79]

Plaintiff
fails to allege sufficient facts to find a “persistent
pattern and practice” that would indicate a custom of
encouraging excessive force. Plaintiff identifies no
additional incidences by which a pattern of violations could
be identified. Indeed, Plaintiff concedes as
much.[80] Instead, Plaintiff relies on Hobart
v. City of Stafford, a district court case regarding a
mentally-ill young man who was shot in his home after police
were called.[81] Plaintiff contends that allegations
similar to those in Plaintiff's complaint were deemed
sufficiently specific to state a claim for
relief.[82] Based on this, Plaintiff contends that
he must merely plead “specific ways in which the
alleged customs instructed officers to act”
unconstitutionally.[83] However, Plaintiff is mistaken.

Fifth
Circuit case law is clear that the policy or custom must be
adequately described and factually supported.[84] Sweeping
statements that constitutional deprivations “were
effected pursuant to [municipal] policy, practice and/or
custom” will not suffice.[85] The Court notes that much
of the language from Plaintiff's complaint appears to be
copied directly from the complaint used in the
Hobart case, which regarded the policies and
practices of the City of Stafford and not the City of
Mission, the defendant here.[86] Rather than supporting the
sufficiency of Plaintiff's allegations, this indicates
that Plaintiff's complaint lacks the specificity that is
required under the law. Plaintiff's allegations do not
specifically indicate any pattern of policies or customs that
contribute to violations and thus amount to sweeping and
conclusory statements.

Plaintiff
also argues that, in the alternative, he may allege an
official policy or custom by indicating that a final
policymaker took a single unconstitutional
action.[87] But those circumstances are
“extremely narrow and give[] rise to municipal
liability only if the municipal actor is a final
policymaker.”[88] Plaintiff's allegations do not meet
this standard either. Plaintiff does not indicate any policy
maker by name, and makes no allegation that a final policy
maker took any action regarding this incident. Indeed,
Plaintiff argues that the facts alleged are indicative of
daily procedural decisions, and thus, required no action on
the part of any policy maker.[89] This does not give rise to
liability under the single-incident exception.

Accordingly,
Plaintiff has failed to sufficiently state a claim for
municipal liability based on an official policy that would
encourage excessive force.

Failure
to Train

In
addition, Plaintiff separately argues that the City was
deliberately indifferent in its training practices. A
municipality's failure to train police officers can give
rise to § 1983 liability.[90] To prevail on a “failure
to train theory” a plaintiff must demonstrate: (1) that
the municipality's training procedures were inadequate,
(2) that the municipality was deliberately indifferent in
adopting its training policy, and (3) that the inadequate
training policy directly caused the violations in
question.[91] “In order for liability to attach
based on an inadequate training claim, a plaintiff must
allege with specificity how a particular training program is
defective.”[92] The Fifth Circuit has “rejected
attempts by plaintiffs to present evidence of isolated
violations and ascribe those violations to a failure to
train.”[93] Alternatively, a plaintiff may allege
deliberate indifference based on a single incident, but that
circumstance is rare and “a plaintiff must prove that
the highly predictable consequence of a failure to train
would result in the specific injury suffered, and that the
failure to train represented the moving force behind the
constitutional violation.”[94]

Plaintiff
fails to allege a cognizable claim against the City for
failure to train. Plaintiff has not adequately pled
deliberate indifference, which ordinarily requires a pattern
of similar conduct.[95] Plaintiff concedes that he makes no
allegations regarding any patterns of similar conduct.
Instead, Plaintiff argues that he should be able to proceed
based upon only the single incident described herein.
Plaintiff again relies on Hobart, and argues that
“highlighting specific areas of inadequate training
regarding mentally-ill people that made the injurious
consequences of the failure to train obvious” in that
case was sufficient to state a claim.[96]

The
Court again notes that using the same language as that used
in a complaint that applied to a different situation in a
different city is not indicative of the specificity required
under the law to allege a cognizable claim. In addition,
Plaintiff is also mistaken as to the law. The district
court's ruling in Hobart regarding the failure
to train claim was appealed to the Fifth Circuit in
Hobart v. Estrada.[97] The Fifth Circuit concluded
that the district court's ruling was “far too
expansive an application of what is supposed to be an
extremely narrow rule.”[98] The Fifth Circuit reversed
stating that the plaintiff must show that the policy maker
was “aware that a shooting such as this was a highly
predictable result of the training being
provided.”[99]

Here,
Plaintiff's allegations are not sufficiently specific to
give rise to a plausible inference that any training, or lack
thereof, provided to the Officers' could give rise to
liability based on this single incident.[100] Plaintiff
must show that the result of the failure to train was
“highly” predictable and resulted in the specific
injury complained of. Plaintiff makes no such showing.

Based
on the foregoing, Plaintiff has failed to identify an
official policy or custom of the City of Mission that was the
‘moving force' behind a constitutional violation.
Accordingly, Plaintiff's claims for liability against the
City under § 1983 must be DISMISSED WITH
PREJUDICE.

B.
Claims under the ADA/RA

Defendants
contend that Plaintiff's claims under the ADA fail as a
matter of law because the ADA does not apply to law
enforcement responding to calls on the street regardless of
whether the subject was an individual with a mental
disability.[101] The Fifth Circuit has held that
“Title II does not apply to an officer's
on-the-street responses to reported disturbances or other
similar incidents, whether or not those calls involve
subjects with mental disabilities, prior to the officer's
securing the scene and ensuring that there is no threat to
human life.”[102]

Here,
Plaintiff's allegations indicate that the Officers were
in the process of securing the area, during which time
Decedent was shot. Plaintiff contends that Decedent was not a
threat to human life; however, Decedent was involved in a
high speed car chase and had previously been using an ax and
a machete. Plaintiff makes no allegation that the scene was
secure prior to the shooting. In these circumstances, the ADA
does not apply.[103]

Plaintiff
states that he also seeks relief under the ADA against the
City for their failure to conduct a self-evaluation as
required under the statute.[104] Plaintiff argues that
Defendants did not move to dismiss this particular claim;
however, Plaintiff's complaint did not indicate that this
was a separate basis for relief. Additionally, Defendants
motion moved to dismiss all Plaintiff's claims under the
ADA and RA.[105]

Plaintiff
has also failed to plead a claim against the City for their
alleged failure to conduct a self-evaluation.[106] Since
Plaintiff has failed to plead an ADA claim, as noted above,
Plaintiff has no standing to plead a claim regarding
self-evaluation.[107] Plaintiff has no independent private
cause of action under this section of the
statute.[108] Therefore, Plaintiff has not
sufficiently pled a claim for relief regarding the
self-evaluation requirement.

Plaintiff's
allegations indicate that the Officers were securing the area
when the injury occurred and therefore Plaintiff has failed
to state a claim under the ADA. Accordingly, all
Plaintiff's claims for relief under the ADA and RA are
DISMISSED WITH PREJUDICE.

C.
State law claims under the Texas Tort Claims Act
(“TTCA”)

i.
Claims Against Individual Defendants

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Defendants
argue that Plaintiff&#39;s claims against Lara, Cabrera, and
De La Rosa must be dismissed pursuant to the
TTCA.[109] However, Plaintiff's complaint did
not bring any state law tort claims against the individual
...

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